CRLA No.45 of 2003 Page 1 of 21 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.45 of 2003 (From the judgment and sentence passed on 04.12.2002 by learned Adhoc Addl. Sessions Judge, Fast Track Court No.III, Cuttack in S.T. Case No.764/2001) Dijabar Swain and another … Appellants -versus- State of Odisha … Respondent Advocates appeared in the case through hybrid mode: For Appellants : Mr.Ashok Das, Advocate -versus- For Respondent : Ms. Subhalaxmi Devi, A.S.C. --------------------------------------------------------------------------- CORAM: THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA Date of Hearing:19.03.2026 :: Date of Judgment:31.3.2026 CRLA No.45 of 2003 Page 2 of 21 Sashikanta Mishra,J. Both the appellants faced trial in the Court of learned Adhoc Addl. Sessions Judge, Cuttack in S.T. Case No.764/2001. Appellant No.1-Dijabar Swain was charged for committing murder of his wife and of causing disappearance of evidence. Appellant No.2-Bijoya Bastia was charged for causing disappearance of evidence of the crime. By judgment dated 04.12.2002, appellant No.1- Dijabar was convicted under Sections 302/201 of I.P.C. and sentenced to undergo imprisonment for life while appellant No.2-Bijoya Bastia was convicted under Section 201 of I.P.C. and was sentenced to undergo rigorous imprisonment for five years. 2. Prosecution case, briefly stated, is as follows; Namita, the daughter of the informant, Dhoi Naik (P.W.10) was given in marriage to accused-Dijabar in 1994 as per Vedic rites. Dijabar regularly demanded money from his in-laws and used to visit them and bring money from them on the pretext of investing in his business. Namita informed through a letter to her parents that she would be killed unless further Rs.10,000/- was paid. On 19.10.2000 the elder brother CRLA No.45 of 2003 Page 3 of 21 of Dijabar namely, Abhimanyu (P.W.7) went to the house of Dhoi Naik and learning from his wife that he had gone to the fields, Abhimanyu went there and informed Dhoi that his daughter (Namita) was ill and had died in the hospital. He further informed that instead of taking the dead body to home, they cremated her in the electric furnace. Hearing this, Dhoi lost his consciousness and after regaining his sense he found Abhimanyu absent. He came home and informed his family members. His son found accused Dijabar in the bus stand and brought him to their house. On 22.10.2000, Dhoi went to his native village and came to know that the accused had killed his daughter and cremated her dead body. The informant therefore, went to Niali P.S. and lodged a written report which led to registration of Niali P.S. Case No.175/2000 under Sections 302/201/34 I.P.C. During investigation, it came to light that accused-Dijabar had killed his wife by strangulating her while accused Bijoya had helped him to dispose of the dead body in a pond. Accused Bijoya had led the police to the pond from where the dead body was recovered. It was found that bricks and stones CRLA No.45 of 2003 Page 4 of 21 were tied to the dead body to prevent it from floating. Thus, the complicity of both the accused persons having come to light, charge sheet was submitted against them. 3. To prove its case, prosecution examined 22 witnesses and proved 15 documents. Defence did not adduce any evidence, either oral or documentary. 4. The trial Court, after analyzing the evidence on record found that death of the deceased was homicidal in nature. Further, relying upon the evidence of P.Ws.9 and 11 before whom the accused had made extra-judicial confession of killing the deceased, the trial Court held that said evidence proved that he had killed the deceased. The trial court further took note of the evidence of P.Ws. 9, 10, 11 and 17 to note the prevaricating statements of the accused regarding the cause of death of the deceased and therefore, accepted that Dijabar had confessed of committing the murder of the deceased by throttling. The trial Court also accepted the prosecution evidence that accused-Bijoya Bastia had assisted Dijabar in concealing the dead body of the deceased after tying stones and brick bags to her body. The dead body was CRLA No.45 of 2003 Page 5 of 21 recovered at the instance of accused-Bijoya Bastia. The trial Court however, did not accept the prosecution evidence that accused-Dijabar had demanded dowry and that the death was caused in connection such demand. The Trial Court thus held the prosecution case proved against both the accused persons and, as such, convicted them and sentenced them as already stated hereinbefore. 5. Heard Mr. Ashok Das, learned counsel for the accused-appellants and Ms. Subhalaxmi Devi, learned Addl. Standing counsel for the State. 6. Mr. Das assails the impugned judgment by raising the following grounds: (i) The dead body was not properly identified to be that of the deceased. (ii) The trial Court based the order of conviction entirely on the so-called extra judicial confession of the accused- Dijabar without any independent corroboration. (iii) The chain of circumstances relied upon by prosecution was not complete. CRLA No.45 of 2003 Page 6 of 21 (iv) The possibility that the deceased may have died due to adverse effect of the medicines being taken by her to bear a child was not considered by the trial Court. 7. Per contra, Ms. Subhalaxmi Devi submits that though there is no direct evidence yet the incriminating circumstances proved in the case are adequate and form a complete chain which proves the guilt of the accused persons. She has cited several circumstances, which we shall discuss in detail at the appropriate place. 8. We have given our anxious consideration to the rival contentions. We have also independently gone through the evidence on record. It is seen that a naked dead body of a woman was recovered from the pond in village Pokharigaon. The autopsy surgeon being examined as P.W.21, referred to the dead body as follows: “The dead body was found completely nude. It was tied by a three folded jute rope in the waist, of left wrist, right angle and left foot was attached with a bag full of bricks weighing 40. Similarly, a stone weighing 65 kgs. was tied by a jute rope and was attached to the neck. Body was in a decomposed state and partly eaten by aquatic animals.” CRLA No.45 of 2003 Page 7 of 21 9. As regards the injuries found on the body of the deceased P.W.21 stated as follows; i. Body skin, mostly pilled (sic peeled) up which was post- mortem in nature and the body was partly adepocerous condition, and was in partly decomposed condition. The uterus avulsed out. ii. Right side breast in the upper outer quadrunt was contused in an area of 25 cm. x 2 c.m. with nail scratches on it 4 in number iii. Left side cheek was contused in an area of 1 c.m x 1 c.m. iv. Right side cheek was contused in an area 2 c.m. x 1 c.m. v. Left side fore-head was contused in an area of 1. c.m.x 1.3 c.m vi. Subscapal contusion present in the frontal area in the middle in an area of 2 c.m.x 2 c.m. vii. Contusion over over right pelvish present in an area of 2 c.m X 2.5 c.m viii. Contusion on the medial aspect of left side thigh present in an area of 3 c.m.x 2 c.m ix. Scratch abrasion present on right side neck 2 c.m. below angle mandible in an area of 2 cm. x 2 cm. x. Scratch abrasion of cresentric pattorn on right sisd face 1 c.m.below the malar area of sèze 1/2 c.m. x 1/4 c.m. xi. Left intercostal Space on antérial axillary liñe contused of size 2 c.m. x.3.c.m xii. Multiple antimortemclots present over left peritontum along with peritonial contusion over transverse colon extensively xiii. Left side hyoid bone is dislocated. xiv. Two contusion mark present each measuring 1/2 cm. x 1/2 c.m. on the left side neck adjacent to xx thyroid gland. xv. Larynx and phanynx are contused xvi. Left side kidney caħtused, anteri superiorily. He opined that the cause of death was due to combined effect of asphyxia and shock resulting from the aforesaid injuries, which are consistent with homicide. 10. We find no reason to differ from the opinion expressed by the Doctor (P.W.21) regarding the nature CRLA No.45 of 2003 Page 8 of 21 and cause of death. In fact, defence also does not dispute that the death of the deceased was homicidal in nature. What it questions is the identity of the dead body. Mr. Das, learned counsel for the appellants has referred to the statement of the autopsy surgeon in cross- examination that he had suggested DNA test for proper identification of the dead body, which was not done and therefore, there is no conclusive proof that the dead body belonged to the deceased. We shall deal with this aspect a little later. It would suffice to note that the dead body recovered from the pond was of a person, who was subjected to homicidal death. As already stated, the trial Court heavily relied upon the evidence of P.Ws. 9, 11 and 17 before whom accused-Dijabar is said to have confessed of killing the deceased. How far such finding stands the scrutiny of law shall also be discussed by us in light of the specific objections raised by the defence. 11. Having observed so, we shall now proceed to deal with the contentions raised by both parties. 12. Mr. Das, learned counsel for the appellants would argue that the dead body was never identified. In fact, the CRLA No.45 of 2003 Page 9 of 21 dead body was not in a state to be identified because of severe decomposition. On the other hand, Ms. Subhalaxmi Devi, learned State counsel submits that even though the body was in a state of high decomposition still it was identified by P.W.12, who is none other than the uncle of the deceased. 13. There is no reason to disbelieve his evidence. We may refer to the evidence of the doctor in this context. In cross-examination the autopsy surgeon (P.W.21) stated that the dead body was highly decomposed and the face was highly distorted along with adequasy at place and that there was no mark of identification to identify the dead body. Two things are noteworthy- (i) the dead body was decomposed and the face was distorted, and (ii) there was no mark of identification. This, according to us, cannot be interpreted to mean that the body was absolutely unidentifiable. Turning to the evidence of P.W.12, who was present during inquest, it is not disputed that he was the uncle of the deceased being the brother of the complainant. He CRLA No.45 of 2003 Page 10 of 21 clearly stated that the dead body was identifiable and that it was of Namita (deceased). No suggestion was given by the defence to him that he was stating falsehood or that his identification was not correct. There is therefore, no reason to disbelieve his sole testimony as regards identification of the dead body of the deceased. The advise given by the doctor to conduct DNA test cannot falsify or nullify the positive evidence of P.W.12. It must be kept in mind that P.W.12 is a close relation being the paternal uncle of the deceased and not a stranger. So, even if the facial features were disfigured, he could still identify his niece. In a similar case, the Supreme Court referring to Modi’s Jurisprudence (A Textbook of Medical Jurisprudence and Toxicology by Jaising P. Modi, 26th Edition), in the case of Neelu @ Nilesh Koshti v. The State of Madhya Pradesh, 2026 INSC 173 held that in the absence of DNA testing does not vitiate the identification when credible and consistent testimonies of witnesses who knew the deceased personally are available on record. CRLA No.45 of 2003 Page 11 of 21 14. Coming to the next point, it has been argued that the evidence of so-called extra judicial confession should not have been accepted by the trial Court. In this context, we may refer to the evidence of P.Ws.9, 11 and 17. P.W.9 is the mother of the deceased. The relevant portion of her testimony is to the effect that in the evening Abhimanyu (elder brother of accused-Dijabar) and Dijabar came to their house and disclosed before them that Dijabar had murdered his daughter by throttling her. Except for a mere suggestion that the accused had not done so, nothing was elicited in cross- examination from her to discredit her testimony. P.W.11 is the brother of the deceased. He deposed that in the evening accused Dijabar and Abhimanyu were brought to their house, where Dijabar disclosed that he himself had killed his sister by throttling her. Learned counsel for the appellants draws our attention to that part of the cross-examination where the witness admitted that 5 to 10 persons of the locality had also gathered and that they did not inform the police after Dijabar and his brother were brought to their house. According to learned CRLA No.45 of 2003 Page 12 of 21 counsel for the appellants, this cannot be treated as an extra-judicial confession. P.W.17 only stated that the brother of the deceased Sudhir (P.W.11) found Dijabar at Aska and brought him to his house and that Dijabar subsequently disclosed that they had committed the murder of Namita and offered to return the properties given at the time of marriage of Namita. This statement has also remained unshaken in cross-examination. 15. The law relating to admissibility of extra judicial confession and its reliability is well settled. In the case of Sahadevan and another v. State of T.N.,1 the Supreme Court laid down the following principles; “16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. 1 (2012) 6 SCC 403 CRLA No.45 of 2003 Page 13 of 21 (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 16. As can be seen, extra-judicial confession being a weak piece of evidence has to be considered along with other evidence and if it is supported by a chain of cogent circumstances and corroborated by other evidence, there is no difficulty in accepting the same. From what has been narrated before, we, prima facie, do not find any discrepancy or inconsistency or improbability in the versions of P.Ws. 9, 11 and 17 so as to discard them at the threshold. Of course, we shall also look into the other circumstances as also corroboration so as to be fully satisfied in this regard. 17. The next ground urged is that the deceased may also have died due to side effect of medicines that she was consuming to bear a child. In this regard our attention has been drawn to the evidence of P.W.9, where she stated that as her daughter (deceased) was issueless she had arranged for local medicine for her on one CRLA No.45 of 2003 Page 14 of 21 occasion so that she can bear a child. Our attention is also drawn to the evidence of P.W.10 where he admitted that as his daughter was issueless, she was being treated locally at Aska and that she died after three months of taking the aforesaid local medicine. According to learned counsel for the Appellants this suggests that death was due to the effect of medicine. 18. We are not able to agree with the aforesaid arguments for the reason that the autopsy surgeon found, apart from several injuries, that the left side hyoid bone was dislocated. He further stated that Injury Nos. ii, iii, iv, v, vi, ix and xii are ante-mortem in nature and denied the suggestion that Injury Nos. iii, iv, v, vi, ix and xii were manufactured due to decomposition and colour change. The statement of P.W.10 that his daughter died three months after taking medicine does not, ipso facto, mean that her death was due to taking of medicines. It only shows the time gap between the taking of medicines and her death. On the face of the medical evidence as noted above coupled with the absence of even a semblance of evidence that the medicines caused any CRLA No.45 of 2003 Page 15 of 21 adverse reaction and ultimate death, the argument is not acceptable. 19. From the above narration, what is clearly discernable is that death of the deceased was homicidal in nature and caused due to several antemortem injuries. Secondly, the accused made extra judicial confession before P.Ws. 9, 11 and 17. We shall now try to find out as to if there are other circumstances to show the complicity of the accused in the crime. 20. As argued by learned State counsel, the following circumstances clearly incriminate the accused; (i) The appellants and deceased were residing together in a rented house belonging to Appellant No.2-Bijoya Bastia. This has been stated by several witnesses namely, P.Ws. 6, 7, 8, 9, 10 and 11. (ii) A letter written by the deceased to her mother on 25.9.2000 (Ext.3) is pressed into service to show that the deceased had complaint of mental abuse by the appellant and that she apprehended death. Learned State counsel, relying upon the judgment of the privy council in Pakala CRLA No.45 of 2003 Page 16 of 21 Narayana Swami v. King-Emperor,2 argues that this letter having been written not long before her death, must be treated as dying declaration. 21. We have perused Ext.3, which is a postcard addressed to the informant and written by Namita (deceased). It does not bear any date but the postal seal shows the date as 25.9.2000. The deceased has, however, addressed the letter to her mother asking her to send her brother as otherwise she would not be alive. It was also speaks of the mental abuse by the appellant No.1 of the deceased for taking of medicines. The deceased has specifically refer to the verbal abuse by the accused that it was intolerable and that she was contemplating suicide. In Pakala Narayana Swami (supra), it was held that the statement relating to the circumstances of the transaction which resulted in death of the victim is relevant as a dying declaration. Having gone through letter and the subsequent event as can be culled out from the evidence on record, we are unable to treat the letter as a dying declaration. This is for the reason that it does not relate to any transaction that ultimately led to the 2 1939 SCC OnLine PC 1 CRLA No.45 of 2003 Page 17 of 21 death of the deceased. Moreover, the deceased has not stated that she was under threat of death by the accused, rather she stated that she was contemplating suicide because of the mental and verbal abuse by her husband. Linking the letter to the occurrence appears to be too far- fetched. So, we discard the letter as an incriminating circumstance. 22. The conduct of the appellant. The appellant-Dijabar was not found despite repeated search by Police. According to P.W.17, after confessing to him of killing the deceased and of returning the properties received at the time of marriage, he went away promising to come back with the articles. There is nothing in the evidence to show that he had actually returned. He was arrested on 04.11.2000 by Police during his visit to the house of Appellant No.2. That apart, he gave prevaricating statements regarding the whereabouts of the deceased in that initially it was said (by his brother) that she died because of illness in the hospital and was cremated in the electric furnace, but subsequently, he stated that the deceased was vomiting CRLA No.45 of 2003 Page 18 of 21 and was suffering from diarrhoea. What strikes as odd is that the appellant-Dijabar is the husband of the deceased and the body of the deceased was found in the pond on 28.10.2000 and yet, he did nothing to search his wife for all these days. His statement that he had cremated the dead body is obviously false. His conduct therefore, strongly suggests that he was trying to hide something. 23. Recovery of the dead body. As already stated, the appellant-Dijabar and his wife were staying in the house of accused-Bijoya Bastia on rent. Bijoya Bastia gave recovery of the dead body from the pond. The evidence in this regard, according to us is full-proof. The dead body itself was found to be tied with 45 kgs of bricks and 65 kgs of stones evidently to prevent it from rising to the surface. This is a very strong circumstance against both the accused persons. 24. Prosecution proved the foundational facts, such as marriage of the deceased with the accused, their staying together in the house of Appellant No.2, recovery of her dead body from the pond and of her homicidal death caused by several ante-mortem injuries. It was necessary CRLA No.45 of 2003 Page 19 of 21 for the Appellant No.1-Dijabar to explain the whereabouts of his missing wife and how her injury-ridden dead body came to be recovered from the pond. These are facts which must be held to be especially within his knowledge. Needless to mention, he failed to do so. Significantly, in his examination under Section 313 of C.P.C., the accused his simply denied all the incriminating circumstances put to him. 25. In this context, we may refer to the oft-quoted judgment of the Supreme Court in the case of Trimukh Maroti Kirkan v. State of Maharashtra,3 where it was held as follows: “13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in- laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the 3 (2006) 10 SCC 681 CRLA No.45 of 2003 Page 20 of 21 demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished. 14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315: (1944) 2 All ER 13 (HL)] — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271: 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” We therefore, hold that the accused/appellant No.1 failed to discharge the burden cast upon him. 26. In our considered view, all the above noted circumstances are fully consistent with the hypothesis of guilt of the accused. We may note here that the evidence CRLA No.45 of 2003 Page 21 of 21 against the accused-Bijoya Bastia relating to causing disappearance of evidence is also tell-tale and does not admit of any doubt whatsoever. 27. Thus, in the final analysis, we find that none of the grounds raised by the appellants to question the correctness of the impugned judgment are valid so as to persuade us to differ therefrom. On an independent analysis of the evidence on record, we have also arrived at the same conclusion as the trial Court. We therefore, find no reason to interfere with the impugned judgment. 28. In the result, the appeal fails and is therefore, dismissed. The appellants being on bail, their bail bonds be cancelled. They be taken into custody forthwith to serve the remaining part of the sentence, if any. .......................................... Sashikanta Mishra, J. Manash Ranjan Pathak, J. I agree. …........................................ Manash Ranjan Pathak, J. Ashok Kumar Behera